Citation Nr: 9812595
Decision Date: 04/22/98 Archive Date: 05/08/98
DOCKET NO. 95-31 623 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manchester,
New Hampshire
THE ISSUE
Entitlement to service connection for a bilateral eye
disorder due to radiation exposure
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
The veteran and his spouse
ATTORNEY FOR THE BOARD
C. Fetty, Associate Counsel
INTRODUCTION
The veteran had active service from February 1943 to October
1945.
This appeal arises from a February 1995 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Manchester, New Hampshire, which denied service connection
for an eye condition and for PTSD. The veteran has appealed
to the Board of Veterans' Appeals for service connection for
a bilateral eye disorder due to radiation exposure.
In February 1995 the veteran submitted a notice of
disagreement and the RO issued a statement of the case. In
May 1995, the RO received the veteran's substantive appeal.
In a September 1995 hearing officer decision, service
connection was established for PTSD and a 10 percent
evaluation was assigned. A subsequent September 1995 RO
rating decision continued the denial of service connection
for an eye disorder and the RO issued additional supplemental
statements of the case at various times.
In July 1997 the Board remanded the case to the RO for
additional development. By RO rating decision of January
1998, a 30 percent rating was assigned for PTSD and the
veteran subsequently withdrew his appeal for a higher rating
for that disability. The case has been returned to the Board
and is now ready for adjudication.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that, as a radar operator, he was
exposed to electromagnetic radar energy during active service
that caused a bilateral eye disorder; he requests service
connection for a bilateral eye disability due to exposure to
radiation. The veteran's representative has asked that an
additional attempt be made to obtain private treatment
records.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
After review of the relevant evidence in this matter, and for
the following reasons and bases, it is the decision of the
Board that the veteran has not submitted evidence of a well-
grounded claim for service connection for a bilateral eye
disorder on a direct basis or as secondary to radiation
exposure.
FINDING OF FACT
The claim for service connection for a bilateral eye disorder
on a direct basis and as secondary to radiation exposure is
not supported by competent evidence tending to show a
connection between the veteran's bilateral eye condition and
radiation exposure, service connected disabilities, or active
service.
CONCLUSION OF LAW
The claim for service connection for a bilateral eye disorder
on a direct basis and as secondary to radiation exposure is
not well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Factual Background
The veteran had active service from February 1943 to October
1945. According to service records, he served as a radar
operator in the Army.
In March 1994, the veteran submitted a claim for benefits for
eye disorders claimed as residuals of radar operation and for
PTSD. His service medical records are negative for eye
disorders (except for refractive error) or for any kind of
radiation exposure. In May 1994 the National Personnel
Records Center (NPRC) indicated that no additional medical
records were available (fire related). In July 1994, the
veteran indicated that Drs. Cole and Rabideau in North Conway
treated him privately for his eyes.
In January 1995, the RO received VA outpatient treatment
records showing that the veteran was treated at various times
in 1994. A July 1994 treatment report notes that the veteran
reported declining eyesight for 4 years and history of radar
exposure in service. The assessment was hyperopia and
presbyopia with bilateral cataracts and slightly decreased
visual acuity in the left eye.
In May 1995, the veteran testified at a hearing that he was a
radar operator for approximately one year in the US and for
approximately three months while overseas. He testified that
he was not told that radar energy might cause blindness, but
that it could cause sterility. After the overseas radar site
was removed, he was transferred to the US 9th Army and
attached to the British 2nd Army. He also testified that a
doctor at the 108th Evacuation Hospital told him that he
would be blind in approximately six months. He did not state
why he was examined at that hospital. His spouse testified
concerning the severity of his PTSD symptoms, an issue no
longer on appeal.
In June 1995, the RO received additional outpatient treatment
records that are not relevant to the issue on appeal.
In September 1995, the RO received a service medical record
purporting to show a prescription for eyeglasses. In October
1995 the RO received VA outpatient treatment records showing
that nuclear sclerotic cataracts (“NSC”) and anterior
capsular cataracts (“ACC”) were found in both eyes on
examinations in August 1994 and August 1995. In December
1995 the RO received an October 1995 VA optometry report that
indicates bilateral decreased visual acuity since previous
visit about a year prior.
In July 1997 the Board remanded the case to the RO for
additional development.
Pursuant to that remand, the RO sent a release form to the
veteran so that he could authorize the RO to obtain private
treatment records from Drs. Cole and Rabideau. The veteran
was informed that he had 60 days to sign and return the
releases. The veteran returned a release for Dr. Rabideau's
records only.
In August 1997 the RO received additional records from Dr.
Rabideau showing an October 1987 neurology complaint and
subsequent October 1987 computerized tomography scan of the
brain. Slight cerebral atrophy probably secondary to
arteriosclerotic cerebral disease was shown.
In October 1997 the RO requested that the veteran sign and
return a release in favor of Dr. Cole. Subsequently, the
veteran's representative notified the RO that no additional
medical evidence existed.
By RO rating decision of January 1998, a 30 percent rating
was assigned for PTSD and the veteran subsequently withdrew
his appeal for a higher rating for that disability.
II. Legal Analysis
The threshold question in this matter is whether the veteran
has presented evidence of a well grounded claim for service
connection for a bilateral eye disorder due to radiation
exposure; that is, a claim which is plausible. If he has not
presented a well-grounded claim, his appeal must fail, and
there is no duty to assist him further in the development of
this claim. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v.
Derwinski, 1 Vet. App. 78 (1990).
In Caluza v. Brown, 7 Vet. App. 498 (1995), the United States
Court of Veterans Appeals (Court) outlined a three-prong test
to establish whether a claim for service connection is well
grounded. The Court stated that for a claim to be well
grounded, there must be competent evidence of a current
disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (medical
evidence or, in some circumstances, lay evidence), and of a
nexus between the in-service injury or disease and the
current disability (medical evidence).
In determining whether a claim is well grounded, the
supporting evidence is presumed to be true. However, a
claimant’s statements will not support a finding of a well-
grounded claim where the assertions are inherently
incredible, or when the fact asserted is beyond the
competence of the person making the assertion. King v.
Brown, 5 Vet. App. 19 (1993); Espiritu v. Derwinski, 2 Vet.
App. 492 (1992).
The Board notes that the veteran's representative has asked
for a remand for an additional attempt to obtain private
medical records from Dr. Cole. Since the prior remand by the
Board, the RO twice asked the veteran to authorize the
release of Dr. Cole's records and the veteran did not do so.
Moreover, the representative reported in October 1997 that no
additional medical evidence existed. Therefore, the Board
finds that an additional remand is not indicated.
The veteran has not submitted evidence of exposure to
ionizing radiation in service. Nor is there evidence that he
has a “radiogenic disease” as defined at 38 C.F.R.
§ 3.311(b)(2) (1997). Radiogenic diseases include posterior
subcapsular cataracts but not anterior capsular or nuclear
sclerotic cataracts. The veteran's service records do not
show the presence of an eye disorder, other than refractive
error, during active service and post service records did not
indicate cataracts or other eye disorders other than
refractive error until July 1994, many years after active
service. There is no medical evidence tending to show that
his eye disorders are the result of any kind of radiation
exposure. The Board also notes that none of the medical
evidence supplies an etiology of the veteran's bilateral eye
disorders or otherwise tends to show a connection between his
eye disorders and active service or service-connected
disabilities. In the absence of competent medical evidence
establishing incurrence of cataracts in service or competent
medical evidence of a link between post service cataracts and
events in service, the veteran's claim must be denied as not
well grounded. Caluza, supra.
The veteran is advised that he may refile a claim for service
connection for a bilateral eye disorder on a direct basis or
as secondary to radiation exposure at any time by notifying
the RO of such an intention and submitting medical evidence
tending to link eye disorders (other than refractive errors)
to an incident of service or to a service connected
disability, or competent evidence showing that he was exposed
to a harmful amount of electromagnetic radiation in service
and that such exposure caused his bilateral eye disorder.
38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991 Supp. 1997);
38 C.F.R. § 3.303, 3.310 (1997). Robinette v. Brown, 8 Vet.
App. 69 (1995).
ORDER
The claim for service connection for bilateral eye disorder
due to radiation exposure is denied as not well grounded.
J. E. Day
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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